The Meaning of "Ordinary Residence" and "Habitual Residence" in the Common Law Provinces in a Family Law Context

Overview

At common law, the primary connection between an individual and a place was domicile. "Residence" was used at a conflict of laws level primarily as one of a number of contacts to ascertain the place with which an individual had a real and substantial connection. "habitual residence" was not used as a connecting factor at common law. However, habitual residence was a major point of contact between a person and a place in Continental European civilian systems of law and particularly popular with the Hague Conferences on Private International law.

When Canada started to participate in international conventions through the Hague Conferences, it also adopted habitual residence as a major connecting factor in preference to the historic common law personal law concept of "domicile" or even simple residency probably because the majority of countries involved had a civil law history and the Conventions were drafted with reference to "habitual residence". Most provinces that have adopted Hague Conventions have accepted "habitual residence" in preference to "domicile" or "ordinary residence" not only in the implementation legislation but also in other family law statutes to resolve international or interprovincial jurisdiction and choice of law issues. Manitoba reinterpreted the concept of "domicile" in terms of "habitual residence" for provincial purposes in The Domicile and Habitual Residence Act[1].

The Children's Law Reform Act[2] in Ontario uses "habitual residence" as the primary source of jurisdiction regardless whether the case involves contact with another province or another country as do other provinces that have adopted the Uniform Custody Legislation upon which the Children's Law Reform Act is based[3]. The Divorce Act[4] continues to determine jurisdiction on the basis of "ordinary residence". Unfortunately, the lines between domicile, habitual residence, residence, and the commonly employed common law concept of ordinary residence have never been clearly defined. Indeed, the Divorce Act uses the concept of "ordinary residence" in sections 3-5 to establish jurisdiction in the English version of the Act and the French equivalent of "habitual residence" in the French language version. While this suggests the concepts are the same, this may not be the case or at least was not historically the case. Although "ordinary residence" did not form part of Quebec law, the Quebec courts interpreted habitual residence in the divorce context the same as the common law courts interpreted ordinary residence primarily as a result of relying on cases from the common law provinces interpreting "ordinary residence" in the same context. There is also some indication that common law courts have begun to integrate the two concepts in a more general context.

In a children's law context, presence, residence and domicile were all used historically to establish jurisdiction to decide custody and access. Current provincial custody legislation incorporates residence, ordinary residence, and habitual residence as well as "real and substantial connection" to various degrees. Jurisdiction in child protection cases was statutory in nature focusing primarily on the presence or residence of the child in the jurisdiction under the various provincial child protection statutes and has remained primarily "residence" or "presence" oriented to the present time.

Child support was also a creation of statute but few statutes expressly addressed jurisdiction to make a child support order or the law that a court should apply to decide support, assuming it had jurisdiction. Since child support orders were in personam orders, they were only enforceable against a payor if made in the place where the payor resided unless he or she attorned to another jurisdiction, usually being the place where the custodial parent and child resided. Because of the problems enforcing child support orders (as well as spousal support orders) at an inter provincial and international level, most jurisdictions implemented reciprocal enforcement legislation whereby a support order was only enforceable outside the place where the order was made if the payor was resident in the granting jurisdiction. If the parents lived in different jurisdictions, an applicant could commence proceedings in the province/country where the payor resided or obtain a provisional order in his or her place of residence which order was ineffective until confirmed by a court in the payor's place of residence. This procedure was streamlined in the Interjurisdictional Support Orders Act, which was implemented at a provincial level in Canadian common law provinces.

Historically, common law courts interpreted the concept of domicile to refer to a person's "permanent home"[5] requiring not only presence within the jurisdiction but also an intention to remain there forever. While this provides a useful working definition of domicile of choice, it does not adequately explain domicile of origin or dependency. Moreover, legislators sometimes used the term domicile in a special sense in a statute providing a different definition for the purposes of the statute to reflect the statutory objectives and policies.

Domicile was a term of art and a question of law not fact. Because of the importance attached to the concept historically, a person had to have a domicile at all points in his or her life and could not have any more than one. The rules governing the concept of domicile were highly technical and sometimes bore little relation to the place where a person lived. The rules governing a child's domicile of dependency in particular were highly formalized yet surprisingly contentious. In the end, many provinces passed legislation to simplify a child's domicile, which did not necessarily reflect the traditional rules: see e.g. Family Law Act[6] s. 67 (domicile of minor child reflecting domicile of parent(s) with whom child is habitually resident).

The common law courts used the various forms of "residence" to describe the place where a person's life was centered. There was no exclusivity associated with "residence" or even with "ordinary residence" but a person could only have one "actual residence" from time to time. When the legislators introduced habitual residence into the common law jurisdictions, the courts originally interpreted it as more than simple residence or ordinary residence but less than domicile unless the legislation incorporated a special definition. More recently, the English courts in particular appear to have merged the concepts of ordinary and habitual residence, suggesting that they are different ways of describing the same concept. While it is unclear whether Canadian courts have gone this far, it appears that there is no appreciable difference between a child's "ordinary" and "habitual" residence in most custody cases.

In recent years, legislators have shown a tendency to shift most family law issues that previously were domicile based to one or other of the forms of residence. Since the focus of this project is restricted to the interpretation and use of the various forms of "residence" in the common law provinces, I will not deal with "domicile" except by way of comparison in defining the various forms of residence.

At the present time, a child's "ordinary" and "habitual" residence each revolves around the place where the child last lived with both parents in a family setting. While Canadian courts acknowledge that a custodial parent has the right to make decisions on behalf of a child, including where the child will reside[7], courts in the common law provinces have refused to allow a custodial parent to unilaterally change a child's ordinary or habitual residence[8] or even to move away with a child if the move would affect the child's relationship with his or her other parent in a material fashion [9]. Substantial case law has developed around when a parent consents or acquiesces in the other parent's decision to move with the child [10] and when a parent should be allowed to move away with a child over the other parent's objections[11]. Obviously, a parent cannot change a child's ordinary or habitual residence without changing where the child resides on a day to day basis since residence, unlike domicile, is primarily a matter of fact reflecting the reality of a child's life, not a matter of law[12]. Whether a unilateral removal by a custodial parent from the place of a child's habitual residence is sufficient to change the child's habitual residence will depend on the law of that place. For example, in Re J. (A Minor) (Abduction: Custody Rights)[13], the custodial mother could change the child's habitual residence unilaterally because the father had no parental rights without a court order. Similarly, if the right to custody in the child's habitual residence gave a unilateral right to change the child's residence in the absence of an order or agreement, then the custodial parent will be able to change the child's habitual residence. This would be a matter of proof of foreign law.


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